Terms of Service
UPLYNK, INC. TERMS OF SERVICE
This Terms of Service, including all exhibits, supplements, appendices, and policies attached or referenced herein (the “Agreement”) is between Uplynk, Inc. (“Uplynk”) and the other signatory to the applicable Service Order (“Customer”) (each, a “Party” and collectively, the “Parties”).
The applicable terms of this Agreement also govern the use of Free, Trial or Beta Services offered by Uplynk. By clicking on a box to indicate your acceptance or by otherwise using Uplynk’s Free, Trial or Beta Services, You agree to these terms and conditions and consent to be bound by the same. If You are acting on behalf of an entity, you represent that you have the authority to bind the entity to these terms and conditions. If You do not have the authority or You do not agree to these terms and conditions, You or the entity you represent may not use the Services.
In consideration of the mutual promises herein, the Parties agree as follows:
1. DEFINITIONS.
1.1. “Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party's equity owners of record immediately before such transaction(s) shall, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.
1.2. “Confidential Information” means proprietary, nonpublic or trade secret information, disclosed in written, oral or visual form, that the disclosing Party or agents (each, "Disclosing Party") provides to the receiving Party, or agents (each, "Receiving Party") and that Disclosing Party designates as being confidential or, if disclosed orally, states at the time of initial disclosure, or if not so marked or stated should reasonably have been understood as confidential to Disclosing Party, either because of the circumstances of disclosure or the nature of the information itself and that (a) relates to Disclosing Party, its products, services, developments, trade secrets, know-how or personnel; and (b) is received by Receiving Party from Disclosing Party during the Term.
1.3. “Customer Content” means any digital assets, including application code or software (“Application Code”), and data provided by Customer for storage, delivery or other processing or use associated with the Services, uploaded or routed to, passed through and/or stored on or within Uplynk's Services or otherwise provided to Uplynk.
1.4. “End User” means a subscriber, member or other visitor of an online site or service owned and/or operated by Customer who uses, benefits from or accesses the Services.
1.5. “End User Data” means information that identifies an End User and is necessary to implement and use the Services, including IP address.
1.6. “Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and service marks, trade names, trade dress, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs, techniques, derivative works, know how, all other intellectual property or proprietary rights (registered or not) and equivalents or similar forms of protection existing worldwide, and all applications for and registrations in such rights.
1.7. “Service Order” or "SO" means a specification of Services to be performed by Uplynk and the associated fees or charges, as agreed and fully executed by the Parties.
1.8. “Services” has the meaning set forth in Section 2 below and, as applicable, Beta Services
1.9. “Service Level Agreement” or “SLA” means the service level agreement applicable to the Services as may be set forth in the applicable Service Supplement.
1.10. “Service Supplements” means the documentation available at https://connect.uplynk.com/hubfs/Edgio%20Service%20Supplements/EDGIO-Landing-Page-Online-Supplements.pdf or otherwise attached to a SO, which sets forth the description, rates, service levels and other applicable terms for the applicable Services.
1.11. “Statement of Work” or “SOW” means a specification of the non-standard (i.e., custom or professional) Services to be performed by Uplynk and the associated fees or charges, as agreed by the Parties.
1.12. “Taxes” means any applicable taxes, tax-like charges, tax-related charges and other charges or surcharges, including all excise, use, sales, value-added and other fees, surcharges and levies.
2. SERVICES.
2.1. Services. Uplynk shall provide the Services to Customer as specified in an SO or SOW, subject to the terms and conditions herein (including any applicable SO, SOW and/or Service Supplement terms, which are deemed incorporated herein). Services will be provided at the levels specified in the applicable Service Level Agreement, if any. Customer’s sole and exclusive remedy for any interruption, failure, defect, impairment or inadequacy of the Services is specified in the Service Level Agreement.
2.2. Acceptable Use, Technical Cooperation.
a. Customer is responsible for and assumes all liabilities arising out of or related to Customer Content. Uplynk is a mere intermediary (i.e., passive conduit) for Customer Content and does not exercise editorial or other control over Customer Content. If Uplynk determines in its sole discretion that Customer Content or any use of the Services is illegal, may compromise the Services, is inappropriate or violates or is inconsistent the rights of others (“Adverse Impact”), Uplynk may take such steps as necessary to resolve the Adverse Impact and will use commercially reasonable efforts to avoid any undue interruption of Services and the foregoing is without prejudice to and shall not preclude or limit any other rights and remedies available to Uplynk..
b. For Services to function as intended, Customer should cooperate in good faith with Uplynk to configure and enable Services. When Customer elects to send or receive Customer Content using the Services, Customer is solely responsible for modifying its content identifiers, consistent with guidance that Uplynk provides, to enable Uplynk to deliver the selected Customer Content.
c. Given the nature of the Services, Customer is solely responsible for (i) all activity occurring on Customer's Uplynk account (ii) all resulting charges and costs and (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by Uplynk or a third party) related to Customer’s account. Customer is solely responsible for implementing token authentication and maintaining the security of Customer's Uplynk account login credentials and any other information used to gain access to Services. Customer is solely responsible for backing up all Customer Content and Customer Data. “Customer Data” means information that identifies Customer, that is provided to Uplynk for purposes of account creation, billing, authentication, authorization or configuration, and may include Customer’s name, contact and billing information, IP address, hostnames and other metadata required for Services configuration (e.g., ingest).
2.3. Use of Suppliers/Subcontractors. Except as otherwise required by law, Uplynk may at any time, and without notice, use the services of one or more suppliers or sub-contractors in connection with the performance of its obligations under this Agreement.
2.4. Order of Precedence. To the extent there is any conflict between a SO or SOW, a Service Supplement and the terms and conditions of this Agreement, the order of precedence is: (a) SO, (b) SOW; (b) Service Supplement (in respect of the Services being provided under that Service Supplement only); and (c) the terms and conditions of this Agreement.
3. CHARGES AND PAYMENT.
3.1. Taxes. All charges are exclusive of Taxes, which Customer must pay. If Customer provides Uplynk with a valid, duly executed tax exemption certificate, Uplynk shall exempt Customer from Taxes in accordance with the law, effective on the date Uplynk receives the exemption certificate. If Customer disputes the application of any Tax, Customer must give Uplynk written notice of the dispute within six months of the date of the invoice. Otherwise, such application of Taxes, as between Uplynk and Customer, shall be deemed correct and binding on Customer. If Customer is required by law to make any deduction or withholding from any payment due hereunder to Uplynk, then notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer to Uplynk shall be increased so that, after any such deduction or withholding for taxes, the net amount received by Uplynk shall not be less than Uplynk would have received had no such deduction or withholding been required.
3.2. Payment.
a. Payment is due within 30 days of invoice date. All invoices may be provided to Customer electronically. Customer shall remit payment to Uplynk at its principal offices, unless Uplynk provides notice to Customer otherwise. All charges shall be invoiced and payable in United States dollars, unless otherwise mutually agreed in writing.
b. If an invoice is unpaid within 30 days of the invoice date (i.e., the invoice becomes delinquent), Uplynk may, in its sole discretion and effective upon notice to Customer, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a cash deposit or other security to guarantee payment and/or (iv) pursue any other remedy available under this Agreement, at law or in equity.
c. If Customer desires to dispute in good faith an invoiced amount, Customer shall, within 30 days of the invoice date, (i) pay the invoiced amount and (ii) provide notice of the details of the dispute, together with all supporting documentation. The Parties shall work diligently to promptly resolve the dispute and upon resolution, (1) Uplynk shall promptly credit to Customer any amount found to be owed to Customer or (2) Customer shall promptly pay to Uplynk all amounts found to be owed to Uplynk. If Customer does not timely submit a documented dispute notice per this Section, Customer waives all rights to dispute such amounts, including any claim of set-off or reimbursement.
d. If Uplynk reasonably deems itself insecure with respect to Customer’s ability to pay (e.g., due to Customer's withdrawal of credit card authorization for automatic payment), Uplynk may, in its sole discretion and effective upon notice to Customer, (i) modify Customer’s payment terms and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment.
4. GRANT OF RIGHTS, INTELLECTUAL PROPERTY.
4.1. Uplynk grants to Customer the right to access and use the Services during the Term solely for the purposes of this Agreement. Subject only to the foregoing, Uplynk retains all worldwide rights, title and interest in and to the Services, Uplynk equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed. Customer shall not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, nonpublic APIs, or other trade secrets from any Services (including any related software, hardware or information).
4.2. Customer grants to Uplynk, and its agents, suppliers and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Content and associated metadata as necessary to provide the Services. Subject only to the foregoing, Customer retains all rights, title and interest in and to Customer Content and Intellectual Property Rights embodied therein or related thereto. Uplynk shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content.
4.3. To the extent the Services involve the provision of software, such as code, interfaces, scripts, tools, files and libraries, to Customer, Uplynk grants, subject to all terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicensable license during the Term to use such software solely for its internal business purposes in implementing and using the Services.
5. DATA.
The Parties acknowledge and agree that (a) Uplynk, shall, by virtue of providing Services, come into possession of Customer Data and End User Data, (b) any processing of such data occurs exclusively at the direction and discretion of Customer, as exercised through workflows or other agreed means and (c) Uplynk may use, process and/or transfer Customer Data, and End User Data (including transfers to entities in countries that do not provide statutory protections for personal data) (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data into databases controlled by Uplynk for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis. . To the extent applicable, Uplynk will process any Customer Data and End User Data in accordance with Uplynk’s Data Protection Addendum, available upon request. Uplynk’s Privacy Policy is available at uplynk.com/legal/privacy-policy. Customer further acknowledges and agrees that (x) applications provided by Uplynk that involve the storage of information are not designed or intended for use with protected health information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and implemented by regulation; and (y) therefore, they must not be used to create, store, transmit or receive PHI.
6. CONFIDENTIALITY.
During the Term and for three years thereafter, Receiving Party shall not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain the sole property of Disclosing Party. Receiving Party shall protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures. Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a similarly stringent confidentiality agreement or are subject to a professional duty of confidentiality. Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (1) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to permit Disclosing Party an opportunity to contest such disclosure (2) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent and (3) Receiving Party discloses only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. Receiving Party shall notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate to help Disclosing Party prevent further unauthorized use or disclosure. Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 6, Disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Each Party represents and warrants that: (a) it possesses the full right, power and authority to enter into and fully perform the Agreement and grant the rights granted herein; (b) it has obtained and shall comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third parties, government authorities or otherwise in order for it to enter into and perform its obligations herein; (c) it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (d) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (e) it shall comply with all applicable laws, rules and regulations in its performance hereunder.
7.2. Customer represents and warrants that it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Customer Content, Customer Data and End User Data provided to Uplynk, and that it will use the Services in accordance with all associated Documentation.
8. DISCLAIMER.
UPLYNK PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. UPLYNK DOES NOT WARRANT THAT ITS NETWORK, COMPUTER SYSTEMS, AND SERVICES ARE FULLY SECURE AND UPLYNK DOES NOT WARRANT THAT USE OF ANY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT UPLYNK WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS TO THE SERVICES.
9. LIMITATION OF LIABILITY.
EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) AND CUSTOMER’S OBLIGATIONS UNDER SECTION 2.2(A) (ACCEPTABLE USE, TECHNICAL COOPERATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT OR DATA, LOST CUSTOMERS, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, OR WHETHER FORESEEABLE OR NOT, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO UPLYNK SYSTEMS, NETWORKS, COMPONENTS OR PROCESSES, ANY UPLYNK SERVICES, EQUIPMENT, SOFTWARE OR DOCUMENTATION. UPLYNK SHALL HAVE NO LIABILITY FOR BANDWIDTH THEFT (E.G., LEECHING OR HOTLINKING/DIRECT LINKING TO CUSTOMER CONTENT), OR MALICIOUS ACTS BY THIRD PARTIES.
UPLYNK’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO UPLYNK FOR THE SERVICES GIVING RISE TO THE CLAIM UNDER THE APPLICABLE SO OR SOW DURING THE 12-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE. THE IMMEDIATELY PRECEDING SENTENCE DOES NOT APPLY TO UPLYNK’S CONFIDENTIALITY OR INDEMNITY OBLIGATIONS.
10. INDEMNIFICATION.
10.1. Customer Indemnification.
a. Uplynk Claim. Customer shall, at its cost, defend, indemnify and hold harmless Uplynk and its officers, directors, employees, agents and permitted successors and assigns (each a "Uplynk Indemnitee") through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (an "Uplynk Claim") brought against an Uplynk Indemnitee arising out of or based upon (a) operation or use of Customer’s products, websites or services, (b) Customer Content, (c) unauthorized use of or access to the Services or Uplynk equipment, (d) Uplynk’s compliance with Customer specifications, (e) a combination or modification of the Services or Uplynk equipment by or on behalf of Customer by anyone other than Uplynk or its authorized agents, (g) use of other than the then-current, unaltered release of any Uplynk-provided software used in the Service, or (h) use of the Services other than as permitted by this Agreement.
b. Customer Indemnification Process. The Uplynk Indemnitee shall (a) promptly provide notice to Customer of any Uplynk Claim for which indemnity is claimed (provided, that, any delay in providing notice shall not relieve Customer of its obligations hereunder, except to the extent that Customer is materially prejudiced by such delay), (b) permit Customer to control the defense of any such Uplynk Claim and (c) provide reasonable assistance at Customer's reasonable cost. Subject to the foregoing, in any Uplynk Claim for which indemnification is sought, Customer may select legal counsel to represent the Uplynk Indemnitee (such counsel to be reasonably satisfactory to the Uplynk Indemnitee) and to otherwise control the defense. If Customer elects to control the defense, the Uplynk Indemnitee may fully participate in the defense at its own cost. If Customer, within a reasonable time after receipt of notice of an Uplynk Claim, fails to defend the Uplynk Indemnitee, the Uplynk Indemnitee may defend and compromise or settle the Uplynk Claim at Customer's cost. Notwithstanding the foregoing, Customer may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Uplynk Indemnitee or diminishes the Uplynk Indemnitee's rights, without obtaining the Uplynk Indemnitee's express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by Customer under this Agreement.
10.2. Uplynk Indemnification.
a. Customer Claim. Uplynk shall, at its cost, defend Customer (the “Customer Indemnitee”), through final judgment or settlement, against any and all third party claims, actions or suits threatened or instituted against Customer alleging that a Service directly infringes an issued patent or other Intellectual Property Right under the laws of a country in which such Service is actually provided to Customer (a “Customer Claim”). Uplynk shall indemnify and hold Customer harmless for damages, costs, and expenses, including reasonable attorney’s fees finally awarded against Customer for such Customer Claim or amounts agreed upon by Uplynk in settlement of such Customer Claim. Notwithstanding the foregoing, Uplynk will have no obligations hereunder to the extent a Customer Claim arises out of or relates to one or more conditions stated in subsections (a) through (h) of 10.1(a).
b. License, Modification, Replacement and Termination of Infringing Service.If any Service(s) becomes the subject of a Customer Claim under this section, or in Uplynk’s opinion is likely to become the subject of such a Customer Claim, then Uplynk may, at its sole option, either (i) replace or modify the alleged infringing Service(s) to make it/them non-infringing, while maintaining reasonably equivalent functionality; (ii) procure for Customer the right to continue using the alleged infringing Service(s) pursuant to this Agreement; or (iii) at Uplynk’s sole option, terminate this Agreement and any outstanding Order Forms with respect to the allegedly infringing Service on 30 days’ written notice with both parties having no further obligations or liability to the other, other than the respective party’s obligations under this section and Customer’s obligation to pay all charges and fees for the affected Service(s) incurred up to termination.
c. Uplynk Indemnification Process. The Customer Indemnitee shall: (a) promptly provide notice to Uplynk of any Customer Claim for which indemnity is claimed (provided, that, any delay in providing notice shall not relieve Uplynk of its obligations hereunder, except to the extent that Uplynk is materially prejudiced by such delay); (b) permit Uplynk to control the defense of any such Customer Claim; and (c) provide reasonable assistance at Uplynk’s reasonable cost. Subject to the foregoing, in any Customer Claim for which indemnification is sought, Uplynk may select legal counsel to represent the Customer Indemnitee (such counsel to be reasonably satisfactory to the Customer Indemnitee) and to otherwise control the defense. If Uplynk elects to control the defense, the Customer Indemnitee may fully participate in the defense at its own cost. If Uplynk, within a reasonable time after receipt of notice of Customer Claim, fails to defend the Customer Indemnitee, the Customer Indemnitee may defend and compromise or settle the Customer Claim at Uplynk's cost. Notwithstanding the foregoing, Uplynk may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Customer Indemnitee or diminishes the Customer Indemnitee's rights, without obtaining the Customer Indemnitee's express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by Uplynk under this Agreement.
10.3. Exclusive Remedy. Section 10.2 provides the sole and exclusive remedy of Customer and the exclusive obligations of Uplynk in connection with a Customer Claim.
11. TERM AND TERMINATION.
11.1. Term. The term of this Agreement (Term) is coextensive with any SO then in effect unless earlier terminated as set forth herein. The Term of any applicable SO is set forth in the SO.
11.2. Termination for Cause.
a. By Customer. Customer may terminate this Agreement for cause, upon notice to Uplynk if: (i) a receiver or administrator is appointed for Uplynk or its property; (ii) Uplynk makes a general assignment for the benefit of its creditors; (iii) Uplynk commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) Uplynk is liquidated or dissolved; (v) Uplynk ceases to do business or otherwise terminates its business operations or (vi) Uplynk materially breaches this Agreement and such breach continues unremedied for 10 business days after receipt of notice from Customer. If Customer fails to terminate this Agreement within a reasonable time following such 10-day period, then it will be deemed to have waived its termination right with respect to such uncured breach. For clarity and subject to Section 13.5 (Force Majeure), a Services Outage as defined in the applicable SLA is not grounds to terminate this Agreement for cause. Customer's sole remedy for a Services Outage is set forth in the applicable SLA.
b. By Uplynk. Uplynk may terminate this Agreement for cause and/or suspend Services upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all undisputed invoiced fees or charges within 30 days from the invoice date, in accordance with this Agreement; (vii) Customer breaches this Agreement and such breach continues unremedied for 10 business days after receipt of notice from Uplynk. Uplynk may terminate, interrupt or suspend Service without prior notice if necessary: (1) to prevent or protect against fraud or illegal use of the Services; (2) to protect Uplynk’s customers, personnel, facilities, equipment, network or services; (3) to prevent violation of Section 7 (Representations and Warranties) or the infringement upon the rights of others, as determined in Uplynk’s sole discretion.
11.3. Termination by Uplynk for Change of Control. If Customer undergoes a Change of Control, Uplynk may terminate the Agreement upon 30 days’ notice to Customer's successor/transferee; provided, that, Uplynk has determined in its sole discretion that Customer’s successor/transferee is either (a) unable to meet Uplynk’s standards for creditworthiness, (b) is otherwise unable to assume and fulfill Customer’s obligations herein, (c) otherwise presents an undue financial or credit risk, and/or (d) is a direct competitor of Uplynk.
11.4. Effect of Termination.
a. Upon expiration or termination of an SO, SOW or this Agreement for any reason, (i) all Customer rights to access or use Services Uplynk shall terminate and Uplynk shall cease providing same, (ii) Customer shall pay to Uplynk all fees or charges accrued but unpaid, (iii) all liabilities accrued before the date of expiration or termination shall survive and (iv) as directed by Uplynk, Customer shall return or destroy, and certify in writing to Uplynk such destruction of, all copies of Uplynk Confidential Information.
b. If Customer terminates the SO, SOW or this Agreement early without cause or if Uplynk terminates theSO, SOW or Agreement for cause, Customer shall be invoiced and pay to Uplynk an early termination charge in such amount as set forth in the applicable SO, SOW or Agreement. Such early termination charge is agreed by the Parties to be liquidated damages and is not a penalty.
12. PUBLICITY.
During the Term, except as otherwise set forth herein, the Parties may not issue press releases or other public communications regarding the Parties’ relationship created by this Agreement or the Services without express prior consent. Customer shall not use Uplynk’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols or otherwise identify or refer to Uplynk, except as specifically permitted under this Agreement or otherwise with Uplynk’s express prior consent. Customer grants Uplynk permission to use Customer’s logo and/or name on the Uplynk website, in Uplynk sales presentations, for marketing purposes and promotional materials, and to identify Customer as a customer of the Services in response to requests for information and responses to proposals. All other uses of Customer’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols shall be subject to Customer’s consent, which shall not be unreasonably withheld.
13. MISCELLANEOUS.
13.1. Customer Sales. No sale of Services by Customer is permitted unless expressly set forth in this Agreement.
13.2. Non-Solicitation. During and for one year after the Term, Customer shall not, and shall ensure that its affiliated companies do not, directly or indirectly solicit for employment any person employed by Uplynk to provide Services. Notwithstanding the foregoing, employment that is initiated by indirect solicitation (such as general newspaper advertisements or general online job postings not targeted at Uplynk's employees) shall not be considered a recruitment or solicitation hereunder.
13.3. No Third-Party Beneficiaries. Except as otherwise set forth in a Service Supplement, there are no third-party beneficiaries to this Agreement, including any insurance providers or Customers.
13.4. Beta Trial or Free Products and Services. From time to time, Uplynk may offer the opportunity to test and evaluate certain products, services and functionality that Uplynk has not yet made commercially available (Beta Services), or has made available on a proof of concept, free or trial basis (“Trial Services”). Access to the Beta or Trial Services is permitted solely for internal evaluation during the period designated by Uplynk (or if not designated, 30 days) and the Services may be used only in accordance with any limitations or restrictions set forth in Uplynk documentation. Uplynk retains all Intellectual Rights in the Beta, Free or Trial Services, and either party may terminate or suspend the use of any or all of these Services at any time for any reason with or without notice. The Beta, Free or Trial Services may be incomplete, modified or rendered inoperable at any time, may contain errors, bugs, or other problems which Uplynk is under no obligation to correct or mitigate, and the Beta Services may never be released and made available as a commercial product, service or feature. These Services constitute Confidential Information under this Agreement. Notwithstanding anything else in this Agreement, the Beta, Free or Trial Services are provided “as is with all faults” with no warranty, indemnity, SLA or support, they may not be fully secure, their use is at the user’s sole risk and expense, and Uplynk’s liability to any user or third party arising out of or related to the Beta Services will not exceed $500.00. Notices, if any, relating to the Beta, Free or Trial Services will be sent to the email address provided by a user in setting up an account (or for Customers in accordance with the notice provisions below).
13.5. Third Party Components. The Services, including Uplynk’s Free, Trial or Beta Services, may allow connection or linking to or the download of certain software, files, or components that are subject to open source and/or third party licensing terms (“Third Party Components”). Customer acknowledges and agrees that the download, connection or link to such Third Party Components and the use of the same is subject to the accompanying license terms, is at Customer’s sole risk and expense, and is provided “as is.” Uplynk disclaims all obligations, liabilities and warranties of any kind, whether express or implied with respect to such Third Party Components.
13.6. Service Improvements. Customer acknowledges that Uplynk is constantly enhancing its Services and has the right to independently make, use, develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with products, software, or technologies that Customer may develop, produce, market, or distribute now or in the future, provided the same is not in violation of the terms of this Agreement.
13.7. Feedback. Feedback concerning Customer’s experience with the Services and Beta Services is essential to their improvement, and Uplynk welcomes Customer’s feedback. Customer agrees that Uplynk may contact Customer by telephone, electronic mail, or other means, to solicit Customer’s feedback, and Customer agrees that Uplynk owns and may use in any manner and without limitation, attribution or compensation in any form, all comments, suggestions, complaints and other feedback Customer provides relating to the Services and Beta Services.
13.8. Notices. All notices, requests, approvals, consents and other communications required or permitted herein shall be in writing, in English and shall be deemed conclusively made (a) if personally delivered, upon delivery, (b) if delivered by overnight courier or private mail service, upon receipt, (c) if delivered by certified mail return receipt requested, five days from deposit in the mail or (d) if delivered by e-mail, upon confirmation of delivery. If to Uplynk: Uplynk, Inc., 901 N Market St. Suite 100, Wilmington, DE 19801, Attention: Uplynk Legal Department; e-mail: Legalteam@uplynk.com If to Customer: at the contact information specified in an SO. Either Party may change its contact information upon notice to the other Party. For clarity, if a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless shall be deemed to have been conclusively made seven days after delivery was reasonably initiated.
13.9. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations herein due to acts of God, civil disorders, acts of terrorism, rebellion, fires, explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, software or parts from vendors, work stoppages or other labor activity, labor conditions, shortages, fire, flood, storm, earthquake or other natural disaster, explosion, embargoes, strikes, labor disputes, riots, insurrection, war or unrest, military action, export sanctions, governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, or malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control (each, a "Force Majeure Event"). Uplynk may limit use of Services due to a Force Majeure Event. A Party whose performance is affected by a Force Majeure Event shall promptly provide notice with relevant details to the other Party and the obligations of the Party giving such notice shall be suspended to the extent caused by such Force Majeure Event for as long as the Force Majeure Event continues; and the time for performance of the affected obligation shall be extended by the delay caused by the Force Majeure Event. If the affected Party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, then it may in its sole discretion immediately terminate the affected Service by giving notice of termination to the other Party. Upon such termination, Uplynk is entitled to payment of all accrued but unpaid fees or charges incurred through the date of such termination. The Parties shall otherwise bear their own costs and Uplynk shall be under no further liability to perform the Services affected by the Force Majeure Event.
13.10. Choice of Law, Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of laws principles. Each Party agrees that any action, suit or other proceeding arising from or based upon this Agreement (each, a "Dispute") will be brought and maintained only in a Federal or State court of competent jurisdiction located in Delaware. Each Party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. The prevailing Party in any Dispute shall be entitled to recovery of its reasonable attorneys' fees and costs. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13.11. Relationship of Parties. The Parties are independent contractors and agree that this Agreement does not establish a partnership, association, joint venture or agency relationship or other co-operative entity between the Parties.
13.12. Waiver, Amendments. No failure or delay by either Party to exercise or enforce any right herein shall operate as a waiver of any such right. This Agreement may be amended only by a writing signed by an authorized representative of Uplynk and an authorized representative of Customer.
13.13. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding shall not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.
13.14. Assignment. Neither Party may assign this Agreement without the other Party’s express prior consent except that Uplynk may freely assign its rights and obligations under this Agreement, in whole or in part, (a) to a parent or affiliate or (b) in connection with a Change of Control. This Agreement shall be binding upon and inure to the benefit of all permitted successors and assigns. Any assignment in contravention of this Section 13.10 is null and void.
13.15. Trade Compliance. Customer will comply with all applicable export, import, and economic sanctions laws and regulations (hereinafter referred to as "Trade Compliance Laws"), including, but not limited to, the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Industry and Security and the embargoes and trade sanction programs administered by the U.S. Department of the Treasury, Office of Foreign Assets Control. Unless authorized by a license or applicable regulatory authorization, Customer represents and warrants that it will not directly or indirectly use the Services to export, import, or re-export items, software, technology, data, or information covered under this Agreement to any country, person, or entity that is prohibited or restricted under Trade Compliance Laws. Customer represents and warrants that neither Customer nor its End Users are identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists.
13.16. Anti-Corruption Compliance. Customer will comply with the Foreign Corrupt Practices Act, UK Anti-Bribery Act, and other applicable anti-bribery laws ("Anti-Bribery Laws"). Customer will not directly or indirectly offer, pay, give, promise, or authorize any money, gift, or anything of value in violation of Anti-bribery Laws and that in any way relate to or affect this Agreement. Customer acknowledges that Anti-bribery Laws prohibit transfer of money or anything of value to any government official or employee, political party, party official, candidate for political office, or private individual for the purpose of: obtaining, retaining, or directing business; influencing any official act or decision; or securing any improper advantage. Customer represents and warrants that in the performance of its obligations under this Agreement, it has not nor will it act in violation of Anti-Bribery Laws. Customer must keep accurate books and records in relation to this Agreement and make those records available to Uplynk upon request and with reasonable notice.
13.17. Survival. The Parties’ rights and obligations set forth in Sections 3.2(c) (Invoice Disputes), 4 (Grant of Rights, Intellectual Property), 6 (Confidentiality), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 13 (Miscellaneous) shall survive termination or expiration of this Agreement.
13.18. Entire Agreement. This Agreement, the Service Supplements (including any SLAs), the Exhibit(s), and all SOs, SOWs or addenda between the Parties are incorporated herein by reference, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter. No amendment to this Agreement is valid unless in writing and signed by both Parties.
13.19. Remedies. Unless otherwise provided for in this Agreement, to the extent permitted by applicable law, the Parties’ rights and remedies provided herein are cumulative and in addition to any other rights and remedies at law or equity.
13.20. Construction. Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement. The terms “include,” “including” or “e.g.” mean “include, without limitation”. The term “day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are so construed. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafting Party shall not apply in interpreting this Agreement.